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Calendar No. 168
106th CONGRESS
1st Session
H. R. 441
_______________________________________________________________________
AN ACT
To amend the Immigration and Nationality Act with respect to the
requirements for the admission of nonimmigrant nurses who will practice
in health professional shortage areas.
_______________________________________________________________________
June 24, 1999
Reported without amendment
Calendar No. 168
106th CONGRESS
1st Session
H. R. 441
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 27, 1999
Received; read twice and referred to the Committee on the Judiciary
June 24, 1999
Reported by Mr. Hatch, without amendment
_______________________________________________________________________
AN ACT
To amend the Immigration and Nationality Act with respect to the
requirements for the admission of nonimmigrant nurses who will practice
in health professional shortage areas.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Nursing Relief for Disadvantaged
Areas Act of 1999''.
SEC. 2. REQUIREMENTS FOR ADMISSION OF NONIMMIGRANT NURSES IN HEALTH
PROFESSIONAL SHORTAGE AREAS DURING 4-YEAR PERIOD.
(a) Establishment of a New Nonimmigrant Classification for
Nonimmigrant Nurses in Health Professional Shortage Areas.--Section
101(a)(15)(H)(i) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(i)) is amended by striking ``; or'' at the end and
inserting the following: ``, or (c) who is coming temporarily to the
United States to perform services as a registered nurse, who meets the
qualifications described in section 212(m)(1), and with respect to whom
the Secretary of Labor determines and certifies to the Attorney General
that an unexpired attestation is on file and in effect under section
212(m)(2) for the facility (as defined in section 212(m)(6)) for which
the alien will perform the services; or''.
(b) Requirements.--Section 212(m) of the Immigration and
Nationality Act (8 U.S.C. 1182(m)) is amended to read as follows:
``(m)(1) The qualifications referred to in section
101(a)(15)(H)(i)(c), with respect to an alien who is coming to the
United States to perform nursing services for a facility, are that the
alien--
``(A) has obtained a full and unrestricted license to
practice professional nursing in the country where the alien
obtained nursing education or has received nursing education in
the United States;
``(B) has passed an appropriate examination (recognized in
regulations promulgated in consultation with the Secretary of
Health and Human Services) or has a full and unrestricted
license under State law to practice professional nursing in the
State of intended employment; and
``(C) is fully qualified and eligible under the laws
(including such temporary or interim licensing requirements
which authorize the nurse to be employed) governing the place
of intended employment to engage in the practice of
professional nursing as a registered nurse immediately upon
admission to the United States and is authorized under such
laws to be employed by the facility.
``(2)(A) The attestation referred to in section
101(a)(15)(H)(i)(c), with respect to a facility for which an alien will
perform services, is an attestation as to the following:
``(i) The facility meets all the requirements of paragraph
(6).
``(ii) The employment of the alien will not adversely
affect the wages and working conditions of registered nurses
similarly employed.
``(iii) The alien employed by the facility will be paid the
wage rate for registered nurses similarly employed by the
facility.
``(iv) The facility has taken and is taking timely and
significant steps designed to recruit and retain sufficient
registered nurses who are United States citizens or immigrants
who are authorized to perform nursing services, in order to
remove as quickly as reasonably possible the dependence of the
facility on nonimmigrant registered nurses.
``(v) There is not a strike or lockout in the course of a
labor dispute, the facility did not lay off and will not lay
off a registered nurse employed by the facility within the
period beginning 90 days before and ending 90 days after the
date of filing of any visa petition, and the employment of such
an alien is not intended or designed to influence an election
for a bargaining representative for registered nurses of the
facility.
``(vi) At the time of the filing of the petition for
registered nurses under section 101(a)(15)(H)(i)(c), notice of
the filing has been provided by the facility to the bargaining
representative of the registered nurses at the facility or,
where there is no such bargaining representative, notice of the
filing has been provided to the registered nurses employed at
the facility through posting in conspicuous locations.
``(vii) The facility will not, at any time, employ a number
of aliens issued visas or otherwise provided nonimmigrant
status under section 101(a)(15)(H)(i)(c) that exceeds 33
percent of the total number of registered nurses employed by
the facility.
``(viii) The facility will not, with respect to any alien
issued a visa or otherwise provided nonimmigrant status under
section 101(a)(15)(H)(i)(c)--
``(I) authorize the alien to perform nursing
services at any worksite other than a worksite
controlled by the facility; or
``(II) transfer the place of employment of the
alien from one worksite to another.
Nothing in clause (iv) shall be construed as requiring a
facility to have taken significant steps described in such
clause before the date of the enactment of the Nursing Relief
for Disadvantaged Areas Act of 1999. A copy of the attestation
shall be provided, within 30 days of the date of filing, to
registered nurses employed at the facility on the date of
filing.
``(B) For purposes of subparagraph (A)(iv), each of the following
shall be considered a significant step reasonably designed to recruit
and retain registered nurses:
``(i) Operating a training program for registered nurses at
the facility or financing (or providing participation in) a
training program for registered nurses elsewhere.
``(ii) Providing career development programs and other
methods of facilitating health care workers to become
registered nurses.
``(iii) Paying registered nurses wages at a rate higher
than currently being paid to registered nurses similarly
employed in the geographic area.
``(iv) Providing reasonable opportunities for meaningful
salary advancement by registered nurses.
The steps described in this subparagraph shall not be considered to be
an exclusive list of the significant steps that may be taken to meet
the conditions of subparagraph (A)(iv). Nothing in this subparagraph
shall require a facility to take more than one step if the facility can
demonstrate that taking a second step is not reasonable.
``(C) Subject to subparagraph (E), an attestation under
subparagraph (A)--
``(i) shall expire on the date that is the later of--
``(I) the end of the one-year period beginning on
the date of its filing with the Secretary of Labor; or
``(II) the end of the period of admission under
section 101(a)(15)(H)(i)(c) of the last alien with
respect to whose admission it was applied (in
accordance with clause (ii)); and
``(ii) shall apply to petitions filed during the one-year
period beginning on the date of its filing with the Secretary
of Labor if the facility states in each such petition that it
continues to comply with the conditions in the attestation.
``(D) A facility may meet the requirements under this paragraph
with respect to more than one registered nurse in a single petition.
``(E)(i) The Secretary of Labor shall compile and make available
for public examination in a timely manner in Washington, D.C., a list
identifying facilities which have filed petitions for nonimmigrants
under section 101(a)(15)(H)(i)(c) and, for each such facility, a copy
of the facility's attestation under subparagraph (A) (and accompanying
documentation) and each such petition filed by the facility.
``(ii) The Secretary of Labor shall establish a process, including
reasonable time limits, for the receipt, investigation, and disposition
of complaints respecting a facility's failure to meet conditions
attested to or a facility's misrepresentation of a material fact in an
attestation. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives, associations deemed
appropriate by the Secretary, and other aggrieved parties as determined
under regulations of the Secretary). The Secretary shall conduct an
investigation under this clause if there is reasonable cause to believe
that a facility fails to meet conditions attested to. Subject to the
time limits established under this clause, this subparagraph shall
apply regardless of whether an attestation is expired or unexpired at
the time a complaint is filed.
``(iii) Under such process, the Secretary shall provide, within 180
days after the date such a complaint is filed, for a determination as
to whether or not a basis exists to make a finding described in clause
(iv). If the Secretary determines that such a basis exists, the
Secretary shall provide for notice of such determination to the
interested parties and an opportunity for a hearing on the complaint
within 60 days of the date of the determination.
``(iv) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that a facility (for which an attestation is
made) has failed to meet a condition attested to or that there was a
misrepresentation of material fact in the attestation, the Secretary
shall notify the Attorney General of such finding and may, in addition,
impose such other administrative remedies (including civil monetary
penalties in an amount not to exceed $1,000 per nurse per violation,
with the total penalty not to exceed $10,000 per violation) as the
Secretary determines to be appropriate. Upon receipt of such notice,
the Attorney General shall not approve petitions filed with respect to
a facility during a period of at least one year for nurses to be
employed by the facility.
``(v) In addition to the sanctions provided for under clause (iv),
if the Secretary of Labor finds, after notice and an opportunity for a
hearing, that a facility has violated the condition attested to under
subparagraph (A)(iii) (relating to payment of registered nurses at the
prevailing wage rate), the Secretary shall order the facility to
provide for payment of such amounts of back pay as may be required to
comply with such condition.
``(F)(i) The Secretary of Labor shall impose on a facility filing
an attestation under subparagraph (A) a filing fee, in an amount
prescribed by the Secretary based on the costs of carrying out the
Secretary's duties under this subsection, but not exceeding $250.
``(ii) Fees collected under this subparagraph shall be deposited in
a fund established for this purpose in the Treasury of the United
States.
``(iii) The collected fees in the fund shall be available to the
Secretary of Labor, to the extent and in such amounts as may be
provided in appropriations Acts, to cover the costs described in clause
(i), in addition to any other funds that are available to the Secretary
to cover such costs.
``(3) The period of admission of an alien under section
101(a)(15)(H)(i)(c) shall be 3 years.
``(4) The total number of nonimmigrant visas issued pursuant to
petitions granted under section 101(a)(15)(H)(i)(c) in each fiscal year
shall not exceed 500. The number of such visas issued for employment in
each State in each fiscal year shall not exceed the following:
``(A) For States with populations of less than 9,000,000,
based upon the 1990 decennial census of population, 25 visas.
``(B) For States with populations of 9,000,000 or more,
based upon the 1990 decennial census of population, 50 visas.
``(C) If the total number of visas available under this
paragraph for a fiscal year quarter exceeds the number of
qualified nonimmigrants who may be issued such visas during
those quarters, the visas made available under this paragraph
shall be issued without regard to the numerical limitation
under subparagraph (A) or (B) of this paragraph during the last
fiscal year quarter.
``(5) A facility that has filed a petition under section
101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing
services for the facility--
``(A) shall provide the nonimmigrant a wage rate and
working conditions commensurate with those of nurses similarly
employed by the facility;
``(B) shall require the nonimmigrant to work hours
commensurate with those of nurses similarly employed by the
facility; and
``(C) shall not interfere with the right of the
nonimmigrant to join or organize a union.
``(6) For purposes of this subsection and section
101(a)(15)(H)(i)(c), the term `facility' means a subsection (d)
hospital (as defined in section 1886(d)(1)(B) of the Social Security
Act (42 U.S.C. 1395ww(d)(1)(B))) that meets the following requirements:
``(A) As of March 31, 1997, the hospital was located in a
health professional shortage area (as defined in section 332 of
the Public Health Service Act (42 U.S.C. 254e)).
``(B) Based on its settled cost report filed under title
XVIII of the Social Security Act for its cost reporting period
beginning during fiscal year 1994--
``(i) the hospital has not less than 190 licensed
acute care beds;
``(ii) the number of the hospital's inpatient days
for such period which were made up of patients who (for
such days) were entitled to benefits under part A of
such title is not less than 35 percent of the total
number of such hospital's acute care inpatient days for
such period; and
``(iii) the number of the hospital's inpatient days
for such period which were made up of patients who (for
such days) were eligible for medical assistance under a
State plan approved under title XIX of the Social
Security Act, is not less than 28 percent of the total
number of such hospital's acute care inpatient days for
such period.
``(7) For purposes of paragraph (2)(A)(v), the term `lay
off', with respect to a worker--
``(A) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace rules,
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